It would be one thing if the conservative activists beseeching judges to cripple Obamacare stuck to the narrow claim that the plain meaning of one section of the statute, read outside the broader legislative context, moots Obamacare subsidies in states that didn't set up their own exchanges. Sorry Dems. You screwed up the wording. That's on you.
But they don't stop there. It's not just that the statute is unambiguous, they argue, but that Congress intended to create a subsidy scheme that would allow individual states to cannibalize the law. It is now an article of faith on the right that Congress meant to condition the subsidies as an inducement to states, but overestimated the power of that inducement.
A foresight error is not the same as a drafting error.— Ramesh Ponnuru (@RameshPonnuru) July 22, 2014
I suspect many of the people advancing this claim realize that it is false, and are engaged in an elaborate gaslighting campaign. Others have probably convinced themselves that they are correct, and are now mansplaining the intent of Congress to both the reporters who covered the bill and the aides who drafted it, all of whom understand how absurd this revisionist history really is.
The revisionism serves a purpose, though. If conservatives allow that Democrats in Congress didn't intend to plant the seeds of their own law's destruction, they'll invite closer scrutiny of the rest of the statute, which quite obviously contemplates subsidizing insurance in all 50 states and the District of Columbia. So they need both an elaborate theory of legislative intent, and judges who are happy to treat the theory as plausible, even though it makes no sense.
They've now found two such judges. Maybe their argument will carry in the Supreme Court, too. Or maybe the conservative justices will just say Congressional intent doesn't matter and rule against the government anyhow. (I still tend to think that the government will prevail, assuming the case ever reaches the Supreme Court.)
But as far as the academic question of what Congress intended goes, there can be no debate. You can ask the people who wrote the bill. You can ask the reporters who chronicled the legislative process, to whom the intent argument is an incredible affront. You can ask state officials, who were advised that federal Medicaid dollars were conditional upon the Medicaid expansion (as originally envisioned) but not that the subsidy dollars were conditional upon establishing an exchange. States like Oregon—which just abandoned its own dysfunctional exchange after enrolling tens of thousands of people, and threw in with Healthcare.gov—continue to behave exactly as you'd expect a state to behave if the subsidies were guaranteed, not conditional.
You can ask Democratic legislators, who were obsessed with holding down the nominal cost of the bill but somehow never quibbled with CBO for assuming that subsidies would flow everywhere.
Or you can ask Scott Brown. When he was still a senator from Massachusetts, Brown sponsored legislation with Senator Ron Wyden of Oregon to hasten the availability of Wyden's State Innovation Waivers. Beginning in 2017, those waivers will exempt states from the ACA's individual and employer mandates, the requirement of having an exchange, and other regulations, if and only if the states successfully design alternative health systems that meet the ACA's cost and coverage goals. Such states would be eligible for all of the federal funds they and their residents would've received through an exchange, and would use those funds to finance their own systems.
Neither the existence of the waiver program, nor the desire among members to hasten its implementation, are consistent with the idea that Congress intended to allow states to essentially waive out of these same requirements simply by doing nothing. Indeed, the legislative text of the waiver provision makes it abundantly clear that Congress intended federal dollars to flow to all exchanges (and indeed all states) whether or not the exchanges were established by the states themselves.
"With respect to a State waiver…under which, due to the structure of the State plan, individuals and small employers in the State would not qualify for the premium tax credits, cost-sharing reductions, or small business credits…for which they would otherwise be eligible, the Secretary shall provide for an alternative means by which the aggregate amount of such credits or reductions that would have been paid on behalf of participants in the Exchanges established under this title had the State not received such waiver, shall be paid to the State for purposes of implementing the State plan under the waiver."
In other words, if a state sets up a single payer plan, it will be granted as much federal money as its residents would have been eligible to receive in sum, if those residents were consumers in an exchange. Any exchange. Congress' clear intent was to make sure that proportional federal funding flowed to all states whether residents are covered through exchanges or not. Conservatives trying to convince you otherwise are—at best—extremely mistaken.